Marco ends two year court battle to thwart boat anchoring

Dave Dumas explains why he continues to defend himself and others against the City of Marco Island's anchoring ordinance.

Video by Kelly Farrell

Marco Island residents Lee Oldershaw, left, and Dave Dumas, skipper of the
"Kinship," said Friday that they will pilot the vessel today to challenge the
city's Waterways and Boating Safety Ordinance.

Eagle staff

MARCO ISLAND - A decision on whether to continue dragging out an anchoring case against an Island resident was brought out of the shade and into the sunshine Monday afternoon. Council discussion on pursuing a case against a Marco resident for anchoring too long and too close to a Marco seawall in 2007 was to be had in a meeting closed to the public. However, Chairman Rob Popoff announced after a brief closed session Monday afternoon that the decision and discussion would be made in public.

The city spent about $60,000 in legal fees and about two and a half years attempting to enforce an ordinance passed in 2007 which prohibited boats from anchoring within 300 feet of a seawall and for more than 12 hours. Islander Dave Dumas intentionally violated the ordinance in January 2007 in the hopes that the city ordinance would be ruled unconstitutional. Other boaters' rights groups supported Dumas and hoped to set a statewide precedence against such municipal laws which attempted to supersede state statutes.

In late May, Governor Charlie Crist signed into law house bill 1423, which will void the city's ordinance and all similar ordinances restricting anchoring of non-live aboard vessels. The legislation takes effect July 1 with certain portions going into effect in October.

Defense attorney Donald Day of Naples-firm Berry, Day & McFee has represented Dumas and said all were aware this legislation was coming and questioned why the city had pursued the case at all.

Following hearing the news of council's decision, Day said Tuesday, he was happy to hear it was over.

"They have saved tax payers dollars in tough economic times. The good news is that state has acted to create a uniform law that will benefit all," Day wrote in an e-mail to the reporter.

City Attorney Alan Gabriel, of the Fort Lauderdale-based law firm Weiss Serota, represented the city in the case. The city's efforts had nearly run aground more than once over the past two years.

However, just days before Crist signed the bill, the city had won an argument to have their earlier appeal of the case reinstated.

Vice Chairman Frank Recker made the motion Monday evening to terminate the appeal currently pending in Collier County Circuit Court and Councilman Wayne Waldack seconded it. Council unanimously agreed to abandon pursuit of any violations against Dumas for his actions more than two years ago when the skipper had anchored his 42-foot Krogen motor yacht Kinship for more than 12 hours within 300 feet of a seawall in Smokehouse Bay violating the Marco Island Waterways and Boating Safety Ordinance.

Marco Capt. Lee Oldershaw was with Dumas in the days leading to the arrest and misdemeanor charges against Dumas. Oldershaw was also present at Monday's council meeting and was glad it was finally over.

"I'm in favor of anchoring rights and was aware it was illegal. I think this is two years over due," Oldershaw said after council's decision Monday.

He asked when the records of all the closed meetings from the previous years would be open to the public and Gabriel responded "as quickly as possible."

The Florida bill which brought the city case to a close is titled "An act relating to the Fish and Wildlife Conservation Commission" and deals with several waterway issues, including the definition of live aboard vessels and the establishment of anchorages and mooring fields.

All existing ordinances that limit anchoring that do not qualify as live-aboard by the new legislation are to become null and void.

Boating groups, including the Sailing Association of Marco Island (SAMI), the local and statewide Standing Watch organizations and the National Marine Manufacturers Association, have backed Dumas in the case.

The Florida Chapter of Standing Watch, a state-wide boating coalition, has been dealing with municipal regulations in several areas throughout the state.

FWC has also worked with municipalities all over the state to address the issues.

While the Marco case comes to a close, boaters will likely still be working to defend their rights, Day says.

"I am not thrilled with the state law. The state I think is taking some rights from the public that they should not be taking ... Florida boaters remain united to keep any unfair government action from unduly restricting our right to waterways owned by the people of the state not the politicians."

Day added that the new state law appears to unduly burden the right to free anchor.

"There appears to be no reason except to exclude boaters from waterway areas with no real explanation except to protect property values. The Florida Constitution says we the people own the water."

Day is of a similar opinion as Island boater Don Dilks that the new legislation solves at least one problem in Florida. Until the legislation was passes, there have been too many municipal laws throughout the state that are uncoordinated and inconsistent, leaving boaters unsure about the regulations in each territory they enter while traveling. At least for now, boaters will no longer need to worry about their anchoring rights with every city and county line they cross.